The Two Religion Clauses

How did the two religion clauses  “Congress shall make no law (A) respecting an establishment of religion, or (B) prohibiting the free exercise thereof”  make their way into the First Amendment of the Constitution? Put differently, what happened to Madison’s original three-pronged religion proposals? There are five dimensions to the development of the religion clauses in the First Congress.

June 8 Speech. James Madison proposed three religion clauses in his June 8 speech in the First Congress. He proposed that the Constitution be opened up and three clauses inserted in Article I, Section 9, “1) The civil rights of none shall be abridged on account of religious belief or worship, 2) nor shall any national religion be established, 3) nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”

The House Select Committee. On July 28, the House Select Committee combined Madison’s proposals 2) and 3) to read: “No religion shall be established by law, nor shall the equal rights of conscience be infringed.” Thus the phrase “national religion” was removed. The rights of conscience clause remained the same.

Full House Debates and Decisions.The House revisited the religion clauses on three separate occasions during their consideration of the House Select Committee Report during the final two weeks of August.On August 15, the House adopted the following: “The Congress shall make no laws touching religion or infringing the rights of conscience.” The important points to note here are a) the full House substituted “no laws touching religion” for “no religion shall be established by law,” and b) Madison withdrew a motion to reinsert “national religion” into the combined clauses.The religion clauses were further altered in the House on August 20 to read: “Congress shall make no law establishing religion or to prevent the free exercise thereof or to infringe the rights of conscience.” Note that “no law establishing religion” from the Select Committee was reintroduced and accepted five days after initial rejection into the religion clauses. Also “the free exercise” clause made its inaugural appearance during these August debates of the whole House and was placed along side the “rights of conscience clause.” The free exercise clause, at least on August 20, was not intended to replace the rights of conscience clause.The final House version that was sent to the Senate on August 24 substituted “prohibiting” for “to prevent,” in the phrase concerning “the free exercise” of religion.To summarize, the House took Madison’s three-pronged proposal on the religion question, and sent the following to the Senate as Amendment Three of the Constitution: “Congress shall make no law I) establishing religion or II) prohibiting the free exercise thereof or III) to infringe the rights of conscience.” So we are back to three dimensions of the religion clauses once again.

Four points should be noted about the three part House version that went to the Senate. First, the House rejected Madison’s proposal to insert the religion clauses into Article I, Section 9 of the Constitution. Instead, the three religion clauses became House Amendment Article III. Second, “the civil rights of none shall be abridged on account of religious belief or worship” clause has become the “free exercise” clause. Third, “the rights of conscience” clause has emerged unscathed from June 8 through August 24. Fourth, the “nor shall any national religion be established,” clause is replaced by “Congress shall make no law establishing religion.”

The Senate.The Senate considered the three religion clauses of House Amendment Article III on several occasions between September 3 and September 9. Two days are important for helping us to answer our opening question.On September 3, at least six different configurations of the religion clauses were rejected. In the end, the Senate adopted the first two parts of House Amendment Article III but dropped “nor shall the rights of conscience be infringed.” So we are back to two religion clauses again. More importantly, what was so vital a part of Madison’s 39 Proposals  the right to conscience  lost its way in the Senate. And the individual right of conscience never reappeared in the language of the religion clauses.On September 9, the Senate passed a motion to further amend House Amendment Article III to read as follows: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble and petition to the Government for the redress of grievances.” Two points are important here. The Senate continued to debate the wording of the establishment clause right to the very end and the religion clauses, for the first time, are bundled with what we today refer to as the expression and association clauses.

The Conference Committee Report.The Conference Committee Report of September 24, 1789 shows that the House agreed with the Senate’s decision to bundle the religion clauses in exchange for a rewording of the religious establishment clause back in the direction of the House version. So we get: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof .”It was the Joint Conference Committee of three representatives and three Senators  of which Madison was one of four Framers of the Constitution chosen  right at the very end of the Congressional debates, that came up with the final formulation of the two religion clauses.